Alternatives to Divorce Litigation
Settling a case before trial can result in significantly less legal fees and more control over the outcome of a case. How much a divorce or other family law case will cost and how long it will take is directly dependent on how many contested issues there are and the willingness of both parties to resolve those issues themselves.
An uncontested divorce where the parties have agreed on all the issues will cost considerably less and happen much quicker than a contentious divorce with a custody dispute that goes to a final trial.
Some parties are simply unable to resolve all the issues in their divorce themselves, but they don’t want to have a family court judge decide them either. An effective option may be a form of alternative dispute resolution such as mediation or arbitration.
What is Mediation?
Mediation, whether private or court-ordered, is a process where a neutral 3rd party helps the parties come to an agreement on some or all of the issues in their case. The mediator doesn’t represent either party and their only goal facilitate an agreement. Many counties require parties in a pending divorce to submit to mediation prior to appearing for a final trial.
Parties should have their divorce attorney attend mediation to guide them through the process, offer solutions, and ensure that the agreement reflects their intentions and is in their best interest.
What is Arbitration?
Arbitration is essentially an informal trial before a private judge who renders a decision. Georgia law provides that parties can arbitrate all issues in a divorce, including custody matters. According to O.C.G.A. § 19-9-1.1, the arbitrator’s custody award would be subject to judicial review to ensure it is in the child’s best interest. Arbitration may be the next best option if parties are unable to voluntarily reach an agreement.
There are two types of arbitration methods in Georgia: non-binding and binding arbitration. In binding arbitration, the parties are generally unable to appeal a decision rendered by the arbitrator absent a showing of prejudice or bias. Conversely, in non-binding arbitration, the parties may appeal their case to a Georgia trial court however, if the arbitrator’s decision is consistent with the trial court’s ruling, the appealing party may be ordered to pay the attorney’s fees incurred by the party defending the appeal.
In general, arbitration is most beneficial for parties that wish to avail themselves of the substantive finality of an arbitrator’s decision without a public trial and without having to expend significant amounts of money associated with a traditional divorce proceeding.
A detailed arbitration agreement should be reached before submitting to arbitration that addresses who will serve as the arbitrator, when the hearing will occur, costs, and the rules of arbitration such as discovery. The agreement should be prepared and reviewed by both parties’ attorneys.
Benefits of Mediation and Arbitration
Mediation and arbitration have a number of benefits in common, such as the fact that it is faster than going to court, less expensive than a traditional divorce proceeding, and completely confidential. It is important to consider that the decision to choose one method over another depends upon several factors, including how well the parties are able to get along, the end result that each party is seeking, and the amount of money that the parties are willing or able to spend to obtain a resolution of their case.